Citation Nr: 0638526
Decision Date: 12/11/06 Archive Date: 12/19/06
DOCKET NO. 03-28 991A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased evaluation for residuals of a
injury to the lumbosacral spine with arthritis, currently
evaluated as 10 percent disabling.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Morgan, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1961 to
February 1964.
Procedural history
In a June 1986 rating decision, the RO granted the veteran
entitlement to service connection of residuals of an injury
to the lumbar spine with arthritis. A 10 percent disability
rating was assigned.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a July 2003 rating decision by the Department
of Veterans Affairs (VA) Regional Office in Cleveland, Ohio
which denied a disability evaluation in excess of 10 percent
for the veteran's lumbar spine disability.
The matter was before the Board in February 2005. At that
time, the matter was remanded to the RO via the VA Appeals
Management Center (AMC) in Washington, DC for additional
development. With respect to the issue on appeal, that
development has been completed. In December 2005, the AMC
issued a Supplemental Statement of the Case which continued
to deny the veteran's claim.
Personal hearing
In April 2004, the veteran provided sworn testimony at a
Travel Board hearing at the RO. A transcript of that hearing
has been associated with the veteran's claims folder.
The Veterans Law Judge (VLJ) presiding at the April 2004
hearing retired before a decision on the merits could be
rendered. VA contacted the veteran and advised him of the
unavailability of the hearing VLJ to participate in the
decision on his claim. By correspondence dated April 27,
2006, the veteran advised that he desired a new hearing at
the RO. In May 2006, this case was remanded so that the
veteran could be scheduled for his requested hearing. Such
hearing was scheduled for September 26, 2006. The veteran
did not appear for the hearing, and he has not provided good
cause for such failure to appear. His hearing request,
therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d);
20.704(d) (2006). The case has been returned to the Board
for further appellate action.
Issues not on appeal
In the July 2003 rating decision, the RO denied the veteran's
claim of entitlement to total disability rating based upon
individual unemployability due to service-connected
disabilities (TDIU). The veteran's August 2003 NOD was
limited to the increased rating of his service-connected
residuals of a low back injury only. To the Board's
knowledge, the veteran has not disagreed with the July 2003
denial of TDIU and the issue is therefore not in appellate
status. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996)
[pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of
disagreement initiates appellate review in the VA
administrative adjudication process, and the request for
appellate review is completed by the claimant's filing of a
substantive appeal after a statement of the case is issued by
VA].
At the time of the Board's February 2005 remand, it was noted
that the veteran had raised a separate issue of entitlement
to service connection for lumbar disc disease, distinct from
the service-connected residuals of lumbar spine injury. That
issue was referred to the RO for initial adjudication. As
that issue has not yet been adjudicated, the issue is still
not before the Board. The Board again refers that issue to
the RO for appropriate action.
FINDINGS OF FACT
1. The veteran's service-connected back condition is
manifested by degenerative changes with limitation of motion.
2. According to the medical evidence of record, lower
extremity numbness and subjective report of severe pain are
attributable to other, non service-connected causes.
CONCLUSION OF LAW
The criteria for the assignment of a disability of 20 percent
and no higher have been met for the service-connected
residuals of a injury to the lumbosacral spine with
arthritis. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§ 4.71a, Diagnostic Codes 5292, 5295 (2002) and Diagnostic
Code 5242 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
In the interest of clarity, the Board will initially discuss
certain preliminary matters. The Board will then address the
pertinent law and regulations and their application to the
facts and evidence.
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the Veterans Claims
Assistance Act of 2000 (the VCAA). The VCAA includes an
enhanced duty on the part of VA to notify a claimant as to
the information and evidence necessary to substantiate claims
for VA benefits. The VCAA also redefines the obligations of
VA with respect to its statutory duty to assist claimants in
the development of their claims. See 38 U.S.C.A. §§ 5103,
5103A (West 2002).
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of the issue has proceeded in accordance
with the provisions of the law and regulations.
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
The ordinary standard of review is as follows. After the
evidence has been assembled, it is the Board's responsibility
to evaluate the entire record.
See 38 U.S.C.A. § 7104(a) (West 2002). When there is an
approximate balance of evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38
C.F.R. §§ 3.102, 4.3 (2006).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (the
Court) stated that "a veteran need only demonstrate that
there is an 'approximate balance of positive and negative
evidence' in order to prevail." To deny a claim on its
merits, the preponderance of the evidence must be against the
claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
The Board further notes that a different standard of review,
which will be discussed below, applies to restoration cases.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issue on appeal. Crucially,
the RO informed the veteran of VA's duty to assist him in the
development of his claim in a letter dated March 10, 2003 by
which the veteran was advised of the provisions relating to
the VCAA. Specifically, he was advised that VA would obtain
all evidence kept by the VA and any other Federal agency. He
was also informed that VA would, on his behalf, make
reasonable efforts to obtain relevant private medical records
not held by a Federal agency as long as he completed a
release form for such. The VCAA letter specifically informed
the veteran that for records he wished for VA to obtain on
his behalf he must provide an adequate description of the
records. Moreover, the letter specifically advised the
veteran that in order to qualify for an increased disability
rating, medical evidence of an increase in the severity of
the disability was required.
Finally, the Board notes that the March 2003 letter expressly
notified the veteran to "tell us about any additional
information or evidence that you want us to try and get for
you." The letter further advised the veteran of how he
could provide any additional evidence directly to VA. These
requests comply with the requirements of 38 C.F.R. § 3.159
(b) in that it informed the veteran that he could submit or
identify evidence other than what was specifically requested
by the RO.
In short, the record indicates that the veteran received
appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio.
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court
observed that a claim of entitlement to service connection
consists of five elements: (1) veteran status; (2) existence
of a disability; (3) a connection between the veteran's
service and the disability; (4) degree of disability; and (5)
effective date. Because a service connection claim is
comprised of five elements, the Court further held that the
notice requirements of section 5103(a) apply generally to all
five elements of that claim. VA has made a determination
that this analysis may be analogously applied to any matter
that involves any one of the five elements of a service-
connection claim listed above.
Therefore, upon receipt of an application for an increased
rating claim, section 5103(a) and section 3.159(b) require VA
to review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate
the elements of the claim as reasonably contemplated by the
application. This includes notice that an effective date for
the award of benefits will be assigned if an increased rating
is awarded.
In this case, with respect to the increased rating claim,
elements (1), (2) and (3) [veteran status, current existence
of a disability and relationship of such disability to the
veteran's service] are not at issue. Notice has been
provided as to element (4), degree of disability. As
explained above, he has received proper VCAA notice as to his
obligations, and those of VA.
With respect to element (5), effective date, the Board has
granted an increase in the currently assigned rating. It is
not within the Board's authority to assign an effective date
therefor. The Board is confident that prior to doing so the
agency of original jurisdiction will provide the veteran with
appropriate notice under Dingess.
Thus, there is no prejudice to the veteran in Board's
considering this case on its merits. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) [strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran].
Because there is no indication that there exists any evidence
which could be obtained which would have an effect on the
outcome of this case, no further VCAA notice is necessary.
See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA
notice not required where there is no reasonable possibility
that additional development will aid the veteran].
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate claims for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2006).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claims, and that there is no reasonable
possibility that further assistance would aid in
substantiating them. In particular, the RO has obtained the
veteran's service medical records, identified private medical
records and all available VA treatment records. During the
course of this appeal, the veteran was referred for VA
medical examinations in January 2004, September 2005 and in
October 2005.
The Board notes that in the February 2005 remand, the Board's
remand instructions included obtaining the veteran's records
from the Social Security Administration (SSA) concerning a
claimed award of disability compensation. In August 2005,
efforts to obtain these records were made by the RO and at
that time, SSA responded to VA that no such records existed.
Accordingly, the Board has determined that to the extent
practicable the RO has complied with the instructions of the
prior remand. Cf. Stegall v. West, 11 Vet. App. 268, 271
(1998) [where the remand orders of the Board are not complied
with, the Board errs as a matter of law when it fails to
ensure compliance].
The Board additionally observes that all appropriate due
process concerns have been satisfied with respect to the
increased rating claim. See 38 C.F.R. § 3.103 (2006). The
veteran and his representative have been accorded the
opportunity to present evidence and argument in support of
his claim. As noted in the Introduction, in April 2004 the
veteran provided testimony at a Travel Board hearing at the
RO. His subsequent hearing request has been deemed
withdrawn.
Accordingly, the Board will proceed to a decision on the
merits.
Pertinent law and regulations
Disability ratings - in general
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2004). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual disorders in civil
occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§
3.321(a), 4.1 (2006).
Specific rating criteria
The veteran filed his claim of entitlement to an increased
rating in January 2003. During the pendency of this appeal,
the applicable rating criteria for the spine, found at
38 C.F.R. § 4.71a, were amended, effective September 26,
2003.
See 68 Fed. Reg. 51, 454-51, 458 (Aug. 27, 2003). The
veteran has been provided with both the new and old
regulatory criteria in the March 2005 SSOC. The veteran's
representative submitted additional argument on his behalf
after receiving such notice. Therefore, there is no
prejudice to the veteran in the Board adjudicating the claim.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
Where a law or regulation changes after the claim has been
filed, but before the administrative or judicial process has
been concluded, the version most favorable to the veteran
applies unless Congress provided otherwise or permitted the
Secretary of VA to do otherwise and the Secretary did so.
See VAOGCPREC 7-2003.
The Board will therefore evaluate the veteran's service-
connected back disability under both the former and the
current schedular criteria, keeping in mind that the revised
criteria may not be applied to any time period before the
effective date of the change. See 38 U.S.C.A. § 5110(g)
(West 2002); 38 C.F.R. § 3.114 (2006); VAOPGCPREC 3-2000;
Green v. Brown, 10 Vet. App. 111, 117 (1997).
(i.) The former schedular criteria
Former Diagnostic Code 5292 [limitation of motion of lumbar
spine], effective prior to September 26, 2003, provided the
following levels of disability:
40% Severe;
20% Moderate;
10% Slight.
See 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002).
The Board notes that words such as "moderate" and "severe"
are not defined in the VA Schedule for Rating Disabilities.
Rather than applying a mechanical formula, the Board must
evaluate all of the evidence to the end that its decisions
are "equitable and just." See 38 C.F.R. § 4.6 (2006).
Although the word "moderate" is not defined in VA
regulations, "moderate" is generally defined as "of average
or medium quality, amount, scope, range, etc." See Webster's
New World Dictionary, Third College Edition (1988), 871.
Under former Diagnostic Code 5295 [lumbosacral strain], a
noncompensable evaluation is assigned for lumbosacral strain
with slight subjective symptoms only. A 10 percent evaluation
is warranted for lumbosacral strain with characteristic pain
on motion. A 20 percent evaluation is warranted for
lumbosacral strain with muscle spasm on extreme forward
bending and loss of lateral spine motion, unilateral, in the
standing position. A 40 percent evaluation is warranted for
severe lumbosacral strain with listing of the whole spine to
the opposite side, positive Goldthwaite's sign, marked
limitation of forward bending in the standing position, loss
of lateral motion with osteoarthritic changes, or narrowing
or irregularity of the joint space, or some of the above with
abnormal mobility on forced motion. 38 C.F.R. § 4.71a,
Diagnostic Code 5295 (2002).
(ii.) The current schedular criteria
The veteran's service-connected low back disability has been
evaluated by the RO under current Diagnostic Code 5242
[degenerative arthritis of the lumbar spine].
For diagnostic codes 5235 to 5243 (unless 5243 is evaluated
under the Formula for Rating Intervertebral Disc Syndrome
Based on Incapacitating Episodes), effective September 26,
2003, a General Rating Formula for Diseases and Injuries of
the Spine will provide that with or without symptoms such as
pain, stiffness, or aching in the area of the spine affected
by residuals of injury or disease the following ratings will
apply.
The General Rating Formula for Diseases and Injuries of the
Spine provides as follows:
A 100 percent rating is warranted for unfavorable ankylosis
of the entire spine.
A 50 percent rating is warranted for unfavorable ankylosis of
the entire thoracolumbar spine.
A 40 percent rating is warranted for unfavorable ankylosis of
the entire cervical spine; or, forward flexion of the
thoracolumbar spine 30 degrees or less; or, favorable
ankylosis of the entire thoracolumbar spine.
A 20 percent rating is warranted for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or, forward flexion of the cervical spine
greater than 15 degrees but not greater than 30 degrees; or,
the combined range of motion of the thoracolumbar spine not
greater than 120 degrees; or, the combined range of motion of
the cervical spine not greater than 170 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis.
A 10 percent rating is warranted for forward flexion of the
thoracolumbar spine greater than 60 degrees but not greater
than 85 degrees; or, forward flexion of the cervical spine
greater than 30 degrees but not greater than 40 degrees; or,
combined range of motion of the thoracolumbar spine greater
than 120 degrees but not greater than 235 degrees; or,
combined range of motion of the cervical spine greater than
170 degrees but not greater than 335 degrees; or, muscle
spasm, guarding, or localized tenderness not resulting in
abnormal gait or abnormal spinal contour; or, vertebral body
fracture with loss of 50 percent or more of the height.
Rating musculoskeletal disabilities
The Court has held that evaluation of a service-connected
disability involving a joint rated on limitation of motion
requires adequate consideration of functional loss due to
pain under 38 C.F.R. § 4.40 (2006) and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45 (2004). See, in general,
DeLuca v. Brown, 8 Vet. App. 202 (1995).
The provisions of 38 C.F.R. § 4.40 state that the disability
of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance. According to
this regulation, it is essential that the examination on
which ratings are based adequately portrays the anatomical
damage, and the functional loss, with respect to these
elements. In addition, the regulations state that the
functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
veteran undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40
(2006).
The provisions of 38 C.F.R. § 4.45 state that when evaluating
the joints, inquiry will be directed as to whether there is
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, and
pain on movement.
The intent of the schedule is to recognize painful motion
with joint or particular pathology as productive of
disability. It is the intention to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimum compensable
rating for the joint. 38 C.F.R. § 4.59 (2006).
Analysis
The veteran seeks an increased disability rating for his
service-connected lumbar spine disability, which is currently
rated 10 percent disabling under both the former (Diagnostic
Code 5295) and the current (Diagnostic Code 5242) schedular
criteria. His primary complaint is of severe pain, which he
states limits his activities.
For the reasons set out below, the Board has determined that
a disability rating of 20 percent and no higher should be
awarded.
Mittleider concerns
The Board is initially presented with a record on appeal
which demonstrates that, in addition to the residuals of his
service-connected lumbar spine disability, the veteran has
been diagnosed thoracic spine deformity, cervical spine
disabilities, alcohol dependence, alcoholic neuropathy and
tobacco abuse. These are not service connected. Indeed,
with respect to the veteran's alcohol and tobacco abuse, the
law precludes compensation for primary alcohol and tobacco
abuse disabilities.
See 38 U.S.C.A. § 105 (West 1991 & Supp. 2002); 38 C.F.R. §
3.1(n), 3.301 (2002);VAOPGPREC 2-97 (January 16, 1997) [no
compensation shall be paid if a disability is the result of
the veteran's own willful misconduct, including the abuse of
alcohol or drugs]; See also 38 U.S.C.A. § 1103 (West 2002);
38 C.F.R. § 3.300 (2006).
The Board is precluded from differentiating between
symptomatology attributed to a non-service-connected
disability and a service-connected disability in the absence
of medical evidence which does so. See Mittleider v. West,
11 Vet. App. 181, 182 (1998), citing Mitchem v. Brown, 9 Vet.
App. 136, 140 (1996).
The veteran's contentions with respect to his back are that
he has experienced severe back pain; that he suffers from
numbness and radiculopathy into his lower extremities due to
his back pain; and that he suffers from spinal deformity.
The veteran has attributed these symptoms to his service-
connected low back condition. However, it is well
established that lay persons without medical training, such
as the veteran, are not competent to attribute symptoms to a
particular cause. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-5 (1992); see also 38 C.F.R.
§ 3.159 (a)(1) [competent medical evidence means evidence
provided by a person who is qualified through education,
training, or experience to offer medical diagnoses,
statements, or opinions].
Reviewing the medical evidence of record, particularly the
October 2005 VA medical opinion and an April 2002 VA
treatment record, it is clear that the veteran's complaints
of numbness, tingling and radiculopathy have been attributed
to his non-service connected alcohol abuse. Specifically,
the October 2005 VA medical opinion noted that the veteran's
neurological complaints were due to alcoholic neuropathy.
Similar findings are contained in the VA treatment records.
Accordingly, the veteran's claimed numbness, tingling and
radiculopathy, that is to say his neurological
symptomatology, will not be considered as part of his
service-connected lumbar spine condition.
With respect to spinal deformity, the March 2003 private MRI
and the October 2003 VA x-ray report both indicate that the
veteran suffers from mild degenerative changes to the lumbar
spine. Such degenerative changes have been recognized by VA
as being part of the service-connected lumbar spine
disability. With respect to the alleged spinal deformity, a
March 2003 private MRI makes no reference to any deformity of
the lumbar spine, and the October 2003 x-ray report includes
a specific finding that "no acute bony abnormality is
apparent." An August 2005 x-ray report indicated deformity
in the veteran's thoracic spine, not the lumbar spine. [The
Board notes in this connection that the record on appeal
indicates that the veteran suffered additional spinal
injuries after service and that conditions of the thoracic
and cervical spine as diagnosed by his private treatment
providers have not been service-connected.] Accordingly,
since no deformity of the lumbar spine has been identified in
the medical evidence, such will not be considered in
evaluating the veteran's service-connected disability.
Regarding the veteran's reports of extreme pain, the Board
again notes that the veteran has a well-documented history of
substance abuse, to include alcohol and tobacco abuse. In
connection with the October 2005 VA medical examination, the
physician noted that the veteran's tobacco use "decreases
blood flow to the spine and damages the elastic tissue" of
the lumbar spine, that is to say increases the opportunity
for additional motion within the lumbar spine and pain.
Moreover, with respect to the veteran's reports of alleged
severe pain, VA treatment records reflect drug-seeking
behavior. These include several reports of purportedly
"lost" narcotic pain relievers, resulting in requests by
the veteran for new medication prior to the end of the
prescription period. On at least one such occasion, in May
2003, the VA providers declined to provide the veteran with
an early refill.
Additionally, records from a private physician also reflect
drug seeking behavior. In a January 2003 treatment note, the
provider indicated that the veteran had specifically
requested narcotic painrelievers. In September 2003, the
veteran asserted that he had received only Tylenol for his
back. This is in direct contradiction to the private
physician's records, as well as September 2003 VA treatment
notes which indicate then current prescriptions of Darvocet
and Ultram. The September 2003 treatment note indicates the
doctor's discomfort with the veteran's presentations
regarding his back condition and the veteran's focus on
pursuing VA compensation. The private physician evidently
refused to provide the veteran additional care on that basis.
Accordingly, the medical records show presentations on the
part of the veteran of severe pain, which the health care
providers evidently discounted and interpreted as drug
seeking behavior.
Although a claimant is competent to report his own
symptomatology, the Board is charged with the duty to assess
the credibility and weight given to evidence.
See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997),
cert. denied, 523 U.S. 1046 (1998). Indeed, in Jefferson v.
Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001), the United
States Court of Appeals for the Federal Circuit, citing its
decision in Madden, recognized that that Board had inherent
fact-finding ability.
In this case, it strongly appears from numerous medical
reports that the veteran is deliberately exaggerating his
symptoms in order to obtain various prescription medications.
The competent medical reports do not show objective evidence
of the severe pain symptoms reported by the veteran, and that
the reported pain is out of proportion to the clinical
findings. The Board therefore finds the veteran's reports of
severe low back pain to be unbelievable. Instead, it appears
that the drug-seeking behavior is part of the veteran's non-
service connected substance abuse problem.
Therefore, for the reasons set out above, the veteran's
reports of neurological symptoms, including radiculopathy;
spinal deformity; and reports of pain in excess of those
expected based upon clinical findings will not be considered
as part of the veteran's service-connected lumbar spine
disability.
Assignment of diagnostic code
The assignment of a particular diagnostic code is "completely
dependent on the facts of a particular case." Butts v. Brown,
5 Vet. App. 532, 538 (1993). One diagnostic code may be more
appropriate than another based on such factors as an
individual's relevant medical history, the diagnosis and
demonstrated symptomatology. Any change in a diagnostic code
by a VA adjudicator must be specifically explained. Pernorio
v. Derwinski, 2 Vet. App. 625, 629 (1992). The Board has
considered whether another rating code is "more
appropriate" than the ones used by the RO. See Tedeschi v.
Brown, 7 Vet. App. 411, 414 (1995).
The Board has considered the appropriateness of the currently
assigned diagnostic codes under both the former and current
criteria. As will be explained in detail below, the
veteran's back disability is part of a complicated diagnostic
picture which includes disability due to his service-
connected residuals of a low back injury and various non-
service connected conditions.
(i.) The former schedular criteria
The veteran's disability was evaluated by the RO with former
Diagnostic Code 5295 [lumbar strain]. Former Diagnostic Code
5295 took into account the veteran's initial diagnosis, which
was residuals of an injury to the lumbar spine which had its
origin in a lifting injury (lumbar strain) as well as his
reports of pain on motion.
It appears, however, that the current diagnosis is arthritis
of the lumbar spine, manifested by limited motion.
Arthritis is in fact rated based upon limitation of motion of
the effected joint. See 38 C.F.R. § 4.71a, Diagnostic Code
5003 (2006). Former Diagnostic Code 5292 [limitation of
motion, lumbar spine] is, in the Board's opinion, the most
appropriate diagnostic code. However, the Board will also
continue to rate the disability under for Diagnostic Code
5295.
The veteran asserts that his service-connected disability
includes neurological complaints. However, the use of
Diagnostic Code 5293 [intervertebral disc syndrome], is not
for application. As discussed above, such neurological
complaints have been attributed by competent medical evidence
to the veteran's non service-connected alcoholism. The most
recent examination report, in October 2005, specifically
indicated a diagnosis of degenerative disc disease without
radiculopathy. Additionally, the Board notes that the
evidence of record does not show a diagnosis of herniated
nucleus pulposus or intervertebral disc syndrome of the
veteran's lumbar spine.
(ii.) The current schedular criteria
The veteran's service-connected low back disability has been
evaluated by the RO under current Diagnostic Code 5242
[degenerative arthritis of the lumbar spine].
With respect to the current schedular criteria, all lumbar
spine disabilities (with the exception of intervertebral disc
syndrome, which has not been diagnosed) are rated using the
same criteria, the General Rating Formula for Diseases and
Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic
Codes 5235-5243 (2006).
As was discussed immediately, the provisions of current
Diagnostic Code 5243 for rating intervertebral disc syndrome
are not for application because neurological symptoms have
not bee associated with the veteran's service-connected
lumbar spine injury residuals but rather to his non service-
connected alcoholism
The veteran's service-connected lumbar strain will therefore
be rated using the current General Rating Formula for
Diseases and Injuries of the Spine.
Schedular rating
(i.) The former schedular criteria
The veteran is currently assigned a 10 percent disability
rating. Former Diagnostic Code 5292 provided a 10 percent
disability rating for a slight loss of range of motion, a 20
percent rating for a moderate loss of range of motion and a
40 percent disability rating for severe range of motion.
Normal forward flexion of the thoracolumbar spine is zero to
90 degrees, backward extension is zero to 30 degrees, left
and right lateral flexion are zero to 30 degrees, and left
and right lateral rotation are zero to 30 degrees. See 38
C.F.R. § 4.71, Plate V (2005). The October 2005 VA
examination found flexion limited to 35 degrees, extension
limited to 15 degrees, lateral flexion limited to 15 degrees
bilaterally, and rotation to 40 degrees bilaterally. These
findings approximate moderate limitation of motion. Flexion
is less than 2/3 of normal; extension and lateral flexion are
half of normal; and rotation is normal. Taken together,
these findings are medium in range, and thus approximate
moderate limitation of motion.
The range of motion found at the January 2004 VA examination
showed substantially less limitation of motion reflecting
flexion to 70 degrees, extension to 20 degrees, lateral
flexion and rotation to 35 degrees on the left and 40
degrees. However, resolving all doubt in the veteran's favor
by applying the October 2005 examination results, the
resulting indication comports with a moderate loss of range
of motion.
[The Board notes in passing that the September 2005 VA
examination indicated even more substantial limitation of the
veteran's range of motion. However, that examination did not
differentiate between the veteran's service-connected and
non-service connected disabilities and was further inadequate
due to the provider's failure to consult the veteran's claims
folder. The veteran's thoracic spine condition which is
referenced heavily in this examination report is not service
connected. Accordingly, the range of motion results from
that examination are not adequate for rating purposes. See
Mittleider, supra. The Board has accordingly relies heavily
on the subsequent October 2005 findings.]
For reasons alluded to above, the Board further finds that
severe limitation of lumbar spine motion is not demonstrated
in the clinical records. As discussed above, the limitation
of motion is moderate in nature (approximately 1/2 of normal).
In order to qualify for the next higher 20 percent disability
rating under former Diagnostic Code 5295, there must be
evidence of lumbosacral strain with muscle spasm on extreme
forward bending and loss of lateral spine motion, unilateral,
in the standing position.
There is no clinical indication that the veteran is suffering
from muscle spasm. None was observed at any of the three
examinations conducted during the course of this appeal, and
the veteran specifically denied suffering from any such spasm
in the past year at his October 2005 examination. The
results of the January 2004 VA examination and the October
2005 VA examinations both indicate pain on lateral motion and
loss of lateral spine motion. Specifically, full range of
lateral motion of the lumbar spine is lateral flexion to 30
degrees bilaterally and lateral rotation to 30 degrees
bilaterally. See 38 C.F.R. § 4.71a (2006). As noted above,
the October 2005 VA examination showed lateral flexion
limited to 15 degrees bilaterally. Some of the criteria for
the assignment of a 20 percent disability rating, loss of
lateral range of motion, has arguably been met. Again
applying the benefit of the doubt, a 20 percent rating may be
assigned under former Diagnostic Code 5295.
In order to qualify for a 40 percent disability rating, the
highest rating available under Diagnostic Code 5295, there
must be evidence of severe lumbosacral strain with listing of
the whole spine to the opposite side, positive Goldthwait's
sign, marked limitation of forward bending in the standing
position, loss of lateral motion with osteoarthritic changes,
or narrowing or irregularity of the joint space, or some of
the above with abnormal mobility on forced motion
As discussed above, both the January 2004 and October 2005 VA
examinations show only moderate, not marked, limitation of
forward flexion. See 38 C.F.R. § 4.71a, Plate V (2006).
There is no evidence of marked limitation of forward bending
in the standing position.
The evidence of record, specifically the referenced VA
examinations conducted during the course of this appeal, do
not include findings consistent with listing of the whole
spine to the opposite side or positive Goldthwait's sign.
The Board notes that there has been some loss of lateral
motion, and it is undisputed that there are arthritic changes
of the veteran's lumbar spine. However, October 2003 and
August 2005 x-ray reports both clearly indicate that such
changes are mild. Therefore, the criteria under former
Diagnostic Code 5295 for the assignment of a 40 percent
disability rating have not been met.
For the reasons set out above, under the former criteria, the
evidence of record indicates that the assignment of a
disability rating in excess of 20 percent is not warranted.
(ii.) The current schedular criteria
The Board has determined that the criteria for a 20 percent
disability rating have also been met under the current
schedular criteria. The October 2005 VA examination showed
forward flexion to 35 degrees. That is to say, the evidence
of record shows flexion of the thoracolumbar spine greater
than 30 degrees but not greater than 60 degrees, which
warrants the assignment of a 20 percent disability rating.
In order to warrant the assignment of the next higher 40
percent disability rating under the General Rating Formula
for Diseases of the Spine, there must be evidence of forward
flexion of the thoracolumbar spine 30 degrees or less; or,
favorable ankylosis of the entire thoracolumbar spine. There
is no evidence of either.
Specifically, the medical evidence indicates that the
veteran's spine is not ankylosed. Ankylosis is "the
immobility and consolidation of a joint due to disease,
injury or surgical procedure." See Lewis v. Derwinski, 3
Vet. App. 259 (1992) [citing Saunders Encyclopedia and
Dictionary of Medicine, Nursing, and Allied Health at 68 (4th
ed. 1987)]. The medical evidence of record, including the VA
examinations described above, does not indicate that
ankylosis exists. The October 2005 VA examination clearly
indicated that ankylosis was not found on a review of x-rays.
Accordingly, although there is some loss of range of motion,
that loss of motion does not include forward flexion of 30
degrees or less or favorable ankylosis. The criteria for the
assignment of a 40 percent disability rating is not met.
The assignment of higher (50 percent and 100 percent)
disability ratings under the General Rating Formula for
Diseases of the Spine requires medical evidence of
unfavorable ankylosis. Since ankylosis is not present, those
criteria are also not met.
Therefore, for the reasons and bases set out above, the Board
has determined that a 20 percent disability rating may also
be assigned under the General Rating Formula for Diseases of
the Spine.
DeLuca considerations
As alluded to above, the major contention before the Board is
that the service-connected lumbar spine disability causes
such severe pain that his functioning is limited. Thus, the
Board must also address the provisions of 38 C.F.R. §§ 4.40,
4.45 and 4.59 (2006). See DeLuca, supra.
The Board acknowledges that the veteran has asserted that he
suffers from severe back pain. This has been discussed in
some detail above. There is evidence of drug-seeking
behavior and secondary gain (increased compensation from VA)
associated with the veteran's reports of severe pain. See
Cartright v. Derwinski,
2 Vet. App. 24, 25 (1991) [personal interest may affect the
credibility of the evidence]. Most notably, as discussed
above, the medical records specifically indicate that the
veteran has shaped his presentation of his symptoms in order
to gain access to increased doses of narcotics. Moreover, in
a September 2003 treatment note, the veteran's private
doctor, Dr. C. noted that he was ceasing his treatment of the
veteran because he felt that the veteran's primary motivation
was an increase in VA compensation, not treatment.
Limitation of motion due to pain was taken into consideration
at the time of the VA examinations and was considered as part
of the basis for the assignment of the new, higher 20 percent
disability rating.
Thus, there is no basis on which to assign a higher level of
disability based on 38 C.F.R. §§ 4.40, 4.45 and 4.59.
Extraschedular consideration
In the September 2003 statement of the case, the RO included
the regulation pertaining to extraschedular evaluations,
38 C.F.R. § 3.321(b). However, the RO did not then or at any
other time adjudicate the matter of the veteran's entitlement
to an extraschedular rating. Moreover, the veteran has never
raised the matter of his entitlement to an extraschedular
rating. His contentions have been limited to that discussed
above, i.e., that he is entitled to an increased schedular
rating.
Accordingly, the matter of the veteran's potential
entitlement to an extraschedular rating will not be
considered by the Board. See Floyd v. Brown, 9 Vet. App. 88,
95 (1996) [the Board cannot make a determination as to an
extraschedular evaluation in the first instance]; see also
Bernard v. Brown, 4 Vet. App. 384 (1993).
Conclusion
For the reasons set out above, the Board has determined that
the veteran is entitled to a 20 percent disability for his
service-connected lumbar spine disability. To that extent,
the appeal is allowed.
ORDER
Entitlement to 20 percent disability rating for the service-
connected lumbar spine disability is granted, subject to
controlling regulations applicable to the payment of monetary
benefits.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs